Nude Model Not a Porn Star; Photo Altered to be Pornographic Defamatory Per Se

In James M. Tharpe, Jr. v. Rudy K. Lawidjaja, currently pending in the Lynchburg Division of the Western District of Virginia, plaintiff James Tharpe, a professional soccer coach and part-time model, alleges that photographer Rudy K. Lawidjaja persuaded him to pose nude after assuring him that no photographs showing Tharpe’s genitals or buttocks would be distributed. Lawidjaja took numerous nude photos of Tharpe and promoted him as a model. Eventually, the parties’ relationship deteriorated. Tharpe refused Lawidjaja’s invitation to quit his job as a soccer coach to relocate to the Washington, D.C. area and serve as Lawidjaja’s “house model.” Instead, he moved to Tennessee, where he coached soccer for a year, and later accepted a coaching position with Central Virginia United Soccer Club (“CVUS”) in Lynchburg.

In August 2011, CVUS notified Tharpe that an Internet search of his name returned inappropriate and embarrassing photographs of which parties associated with the soccer club did not approve. According to the court’s examination of the record, Lawidjaja had posted nude photographs of Tharpe on his website as well as other sites, identified Tharpe as a “porn star,” and digitally altered the photographs to depict Tharpe with an erection and ejaculating for the camera. The court found that Lawidjaja tagged these pornographic photographs with keywords to link the photos to CVUS (Tharpe’s employer, which had nothing to do with the photos) so that any Google search for CVUS would return the photographs. Tharpe sued Lawidjaja for defamation, intentional infliction of emotional distress, and other torts.
To prove a claim for defamation under Virginia law, a plaintiff must show (1) publication (2) of an actionable statement (3) with the requisite intent. A false statement must be defamatory; that is, it must tend to so harm the reputation of the plaintiff as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. A statement may be classified as defamatory per se if it imputes the plaintiff is unfit to perform the duties of his job or prejudices the plaintiff in his profession or trade. A photograph can constitute a defamatory “statement.”

The court found that the photographs–taken in the context of their ordinary and common acceptance as the average citizen would understand them, and with every fair inference attributed to them–could be deemed defamatory under Virginia law. The court went further to hold that the photographs were defamatory per se as they arguably impute unfitness for Tharpe to perform the duties of a youth soccer coach and prejudice him in his profession or trade. Additionally, the court found that Lawidjaja “arguably intended to impute that unfitness,” as indicated by his tagging the photos with the name of Tharpe’s employer.

With respect to the claim for intentional infliction of emotional distress, the court noted that IIED claims in Virginia require a showing that (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous or intolerable; (3) there was a causal connection between the wrongdoer’s conduct and the resulting emotional distress; and (4) the resulting emotional distress was severe. IIED claims require proof of conduct intended to cause “personal, emotional damage to an individual, rather than conduct intended to cause economic damage to a business.”

Here, the court found sufficient evidence in the record to deny Lawidjaja’s motion for summary judgment. Intent to cause emotional distress was evident from certain exculpatory clauses in release agreements he asked Tharpe to sign, which Lawidjaja believed gave him the right to use the photographs “for any purpose whatsoever,” along with other evidence of bad faith. The court also found that a jury could reasonably conclude that falsely identifying Tharpe as a “porn star” was sufficiently “outrageous” to satisfy the tort, and that Tharpe had suffered severe emotional distress.

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